# Petition for Writ of Certiorari — E. I. du Pont de Nemours and Co. v. United States (No. 06-726) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1790%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 ## Text Suprame Co p re pur. U.S. O6-726NOV 27 2008 | REECE OR ter In the Supreme Court of the United States No. 06- E. ]. pu Pont pe Nemours AND COMPANY, ET AL., PETITIONERS v. UNITED STATES OF AMERICA, £7 AL., RESPONDENTS ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT PETITION FOR A WRIT OF CERTIORARI Joun MCGatir—N Parron Boccs LLP One Riverfront Plaza 6th Floor Newark, NJ 07102 (973) 848-5610 Counsel for Petitioners E. 1 du Pont de Neniours and Company, Sporting Goods Properties, Inc., and Conoco Phillips Company, successor in interest to Conoco, Inc. Mark I. Levy Counsel of Record KILPATRICK STOCKTON LLP 607 14th Street, N.W. Suite 900 Washington, DC 20005 (202) 824-1437 WIiiiiaM 23. Hyatt, Jr. Emity L. Won KIRKPATRICK & LOCKHART NiCHOLSON GRAHM LLP One Newark Center 10th Floor Newark, NJ 07102 (973) 848-4000 Counsel for Petitioners E. lL du Pont de Nemours and Company and Sporting Goods Properties. Inc. DOARSS g i QUESTION PRESENTED Whether, as two circuits have held following this Court’s decision in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), but the court below rejected, a party- that is potentially responsible (a “PRP”’) for cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq., and that undertakes such a cleanup and incurs those costs without the compulsion of a Section 106 or 107 civil action and therefore cannot sue for contribution under Section 113(f)(1) as construed in Cooper, has a cause of action under Section 107(a) or federal common law against another PRP to recover an equitable share of the cost of the cleanup. ii PARTIES TO THE PROCEEDING Petitioners, E. |. du Pont de Nemours and Company, ConocoPhillips Company, and Sporting Goods Properties, Inc., were the plaintiffs and the appellants in the courts below. Respondents, the United States of America, United States Department of Commerce, United States Department of Defense, United States Department of the Army, United States Department of Energy, United States Department of the Interior, and United States Department of the Navy, were the defendants and appellees. CORPORATE DISCLOSURE STATEMENT PURSUANT TO RULE 29.6 Petitioner E. 1. du Pont de Nemours and Company is a publicly held corporation. it has no parent corporation, and no publicly held corporation owns 10% or more of its stock. Petitioner ConocoPhillips Company, the successor in interest to Conoco Inc., is wholly owned by ConocoPhillips Holding Company, which in turn is wholly owned by ConocoPhillips, a publicly held company. Petitioner Sporting Goods Properties, Inc., is wholly owned by petitioner E. J. du Pont de Nemours and Company. iii TABLE OF CONTENTS QUESTION PRESENTED .......------------> PARTIES TO THE PROCEEDING ........-.---- CORPORATE DISCLOSURE STATEMENT PURSUANT TO RULE 29.6 ........-- nea es TABLE OF CONTENTS .......-----s sees 0 0: TABLE OF AUTHORITIES ......-.-------+-+- TABLE OF APPENDICES ........-.---+++++5: OPINIONS BELOW .........------ eee etree: Po. | eres Sore se ee STATUTORY PROVISIONS INVOLVED ........ 2 an ener ree ts ee A. The CERCLA Regulatory Scheme .......- B. The History Of This Case .....--.------- REASONS FOR GRANTING THE PETITION 1. THERE IS A SQUARE AND EXPLICIT CIRCUIT CONFLICT ON THE IMPORTANT AND RECURRING CERCLA ISSUE PRESENTEDINTHISCASE ........--- iv Contents Page Il. THE THIRD CIRCUIT ERRED IN REJECTING A PRP’S CAUSE OF ACTION TO RECOVER AN EQUITABLE SHAREOF ~ CLEANUP COSTS FROM OTHER RESPONSIBLE PARTIES ...........__. 13 A. Section 107(a)(4)(B) Provides An Express Cause Of Action.........__. 15 1. The plain Statutory language establishes the Section 107(a) cause CORM s.66 15 2. The background, history, and purpose of CERCLA demonstrate the existence of the Section 107(a) cause ME 6 odes ac 18 3. The Third Circuit's rejection of a Section 107(a) cause of action puts the United States in a preferred Position over other PRPs and therefore is inconsistent with congressional intent .........._. 24 B. Alternatively, An Implied Cause Of Action Exists Under Section 107(a) ... 25 C. In The Alternative, A Cause Of Action Arises Under Federal Common Law ... 27 CONCLUMION oi 30 TABLE OF AUTHORITIES Page Cases: . Atl. Research Corp. v. United States, 459 F.3d 827 CE Se Goer vevsacvicereccecess passim Boyle v. United Techs. Corp., 487 U.S. 500 (1988) CCPC U MENG Cb esas ese ¥ ee ev eecvocces 27, 28 Conn. Nat'l Bank v. Germaine, 503 U.S. 249 (1992) EE 15 Consol. Edison Co. of N.Y. v. UGI Util. Inc., i a” fe” Lo Ay) passim Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. eC aw haves wessewsvercesces passim Engine Mfrs. Ass'n v. S. Coast Air Mgmt. Dist., Ee ee eee eee 15 Fisher Dev. Co. v. Boise Cascade Corp., 37 F.3d 104 GUN dea vassvevecreseeseers 22 FMC Corp. v. U.S. Dep t of Commerce, 29 F.3d 833 (3d Cir. 1994) (en banc) ...........--------- 24, 25 Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980) ES ES eee eo 22 Illinois v. City of Milwaukee, 406 U.S. 91 (1972) .... 27 Key Tronic Corp. v. United States, 511 U.S. 809 eau Scwaieeees ese esccceeees passim vi Authorities Page Morales v. Trans World Airlines, Inc., 504 U.S. 374 sich ee ay 22 Musick, Peeler & Garrett v Employees Ins. of Wausau, 508 U.S. 286 co ee. fee ttechoceonwe., 25 New Castle County vy. Halliburton NUS Corp., 111 F.3d 1116 (3d Cir. a ee a a 5 Northwest Airlines, Inc. v. T, ransp. Workers Union of . Am., 451 U.S. PPGPEED fae cs 4, 14, 26, 27, 29 Pennsylvania v. Union Gas Co., 491 U.S. ] (1989) SENG 2 Aaa ed hee ewe eed ao ee. 3, 20, 21, 24 PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610 shchsrpticc prude er TE i 5 Reading Co., In re, 1ISF3d 111] (3d Cir. 1997) |. 5 Schaefer v. Town of Victor, 457 F.3d 188 (2d Cir. vitae ROC Ee Re EO aT th 2, 7, 20 Seminole Tribe of Fla. v. Florida, 517 U.S. 44 RVR Hs rid esa rivseabgcuucar le Gack 3,22 Texas Indus., Inc. v. Radcliff Materials, inc.,451 U.S. WIMP 2 Viddedie girs oe 4, 27, 28 United States vy. Bestfoods, 524 U.S. §| (1998) .... 3,20 vil Authorities United States v. USX Corp., 68 F.3d 811 (3d Cir. SE aca sa aE COUN Leeda sae sees eames 28 Whitfield v. United States, 543 U.S. 209 (2005) ... 22 Federal Statutes, Rules, and Miscellaneous: SPCR. PA FIG Ge «ccc sede td eaedecesies 3 pg Nome Ee eee yr rr rey 1 Ek cote Ug freer er res ee ree ee passim SEB BN ha Ors owes ecuescunereens 3,15 Oe We co dacs s dew heeds seek rane 3 Ss PE. Sawer ex nucvawerteneerasiwe passim SEATS BE hv hb a beds Mase ehiees passim SEUSS Pe so vcs ccccestavwaiiees 3 42 U.S.C. § 9607(a)(4)(B) .......... ; dice tave passim SEU Bee sinc babar era cigs sd eeeeres 28 Rs Tem yk Cl re per rrr eer re passim a ee LS eee ey ee ee 5 aS Wha © EES hp obo cd nes eaencowwnns 3, 24 viii Authorities Amendment to National Oil and Hazardous Substance Contingency Plan, 48 Fed. Reg. 40,658 (Sept. 8, 1983) ......... National Oil and Hazardous Substance Poilution Contingency Plan, 55 Fed. Reg. 8666 (Mar. 8, 1990) .......... Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99-499, 100 Stat. 1613 .......... H.R. Rep. No. 96-1016(1) (1980), reprinted in 1980 U.S.C.C.A.N. 6119 ....... H.R. Rep. No. 99-253(1) (1985), reprinted in 1986 U.S.C.C.A.N. 2835 ....... H.R. Rep. No. 99-253(i1) (1985), reprinted in 1986 U.S.C.C.A.N. 3038 ....... S. Rep. No. 99-11 (1985) 126 Conc. Rec. 26,388 (1980) (remarks of Rep. Florio) .................. 126 Conc. Rec. 31,965 (1980) (statement of Kep. Florio) ................ 126 Conc. Rec. Hi1,787 (1980) (statement of Rep. Florio) 131 Cone. Rec. 24,725 (1985) (statement of Sen. Domenici) TE aey eevee 6 6 8 Page neniecnn Authorities Page Exec. Order No. 12,580, 52 Fed. Reg. 2923 (Jam. 23, 1987) ..... cece eee cece eee reece 24 Oversight Hearings Before the House Subcomm. On Admin. Law and Governmental Relations, Comm. On Judiciary, 99th Cong. Sess. 51 (1985) ....-- 19 Lee M. Thomas & F. Henry Habicht Il, U.S. EPA, Interim CERCLA Settlement Policy (OSWER Directive No. 9835.0) (1984) .......--.--+5-: 23 TABLE OF APPENDICES Appendix A — Opinion Of The United States Court Of Appeals For The Third Circuit (Filed August sk ntuiag Be OEE EEO PTE Pa IR NE Appendix B — Memorandum Opinion Of The United States District Court For The District Of New Jersey Filed December 30, 2003 And Amended Order (Dated January 8, BR ae Appendix C — Opinion And Order Of The United States District Court For The District Of New Jersey (Filed March 1, BE otk Seve den eet Appendix D — Order Of The United States Court Of Appeals For The Third Circuit Denying Petition For Rehearing (Dated October CS ee Appendix E — Statutory Provisions Involved ‘Page 76a 115a l Petitioners, E. 1. du Pont de Nemours and Company, ef al. (“DuPont”), respectfully petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. - OPINIONS BELOW The opinion of the court of appeals (App., infra, \a-75a) is reported at 460 F.3d 515. One opinion and order of the district court (App., infra, 76a-114a) are reported at 297 F. Supp. 2d 740. The other opinion and order of the district court (App., infra, 115a-123a) are unreported. JURISDICTION The judgment of the court of appeals was entered on August 17, 2006. By order entered on November 1, 2006, the court of appeals denied DuPont's timely petition for rehearing (App., infra, \24a-125a). The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED The relevant provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 ef seq., are reproduced in the appendix to this petition (App., infra, \26a-133a). STATEMENT In Cooper Indus., Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004) (“Cooper”), this Court held that a party that is potentially responsible (a “PRP”) for the cleanup of a contaminated site under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 ef seq., does not have a cause of action for contribution against another PRP under Section | 13(f)(1) of the Act if it has not been sued under Sections 106 or 107. In so ruling, the Court expressly left open the question whether a PRP that had voluntarily undertaken a cleanup and incurred cleanup costs without the compulsion of a Section 106 or Section 107 civil action could bring suit against another PRP to recover an 2 equitable share of the cost of the cleanup pursuant to Section 107(a) of CERCLA. See 543 U.S. at 168-71. In a separate opinion, two Justices addressed the question left open by the majority and concluded that such a cause of action does lie under Section 107(a). See 543 U.S. at 172-74 (Ginsburg, J., joined by Stevens, J., dissenting). Following Cooper, three} circuits have now decided this question. Unanimous panels of the Second and Eighth Circuits have held that a PRP does have such a cause of action. See Consol. Edison Co. of N.Y. v. UGI Util Inc., 423 F.3d 90 (2d Cir. 2005), pet. for cert. filed, No. 05-1323 (Apr. 14, 2006), order calling for the views of the Solicitor General (Oct. 2, 2006); Schaefer v. Town of Victor, 457 F.3d 188 (2d Cir. 2006); Atl. Research Corp. v. United States, 459 F.3d 827 (8th Cir. 2006), pet. for cert. filed, No. 06-562 (Oct. 24, 2006). By contrast, in direct and express conflict with those decisions, a divided panel of the Third Circuit in this case held that there is no such cause of action. App., infra, 60a.' In light of this square circuit conflict on the important and recurring CERCLA issue left open in Cooper, this Court’s review is warranted. Furthermore, because the conflict is created by the decision below, and because this case provides the most suitable vehicle for resolving the issue, it would be appropriate for the Court to grant this petition for certiorari. If the Court believes it would be beneficial also to have before it a decision reaching the contrary conclusion, the granted cases could be consolidated for briefing and oral argument. A. The CERCLA Regulatory Scheme. 1. CERCLA was enacted in 1980 in response to serious environmental and health risks posed by property contaminated 1. The Section 107(a) issue also is pending in the Seventh and Ninth Circuits. See Metro. Water Reclamation District of Greater Chicago v. N. Am. Galvanizing & Coatings, Inc., No. 05-3299 (7th Cir. argued Jan. 20, 2006); City of Rialto v. DOD, No. 0S-56749 (9th Cir. oral argument not yet scheduled). 3 with hazardous substances. United States v. Bestfoods, 524 U.S. 51, 55 (1998). Congress empowered the President (acting through the Environmental Protection Agency (“EPA”)) either directly to clean up a contaminated property pursuant to Section 104 or to compel PRPs to conduct the clean up pursuant to Section 106. 42 U.S.C. §§ 9604, 9606. In either case, EPA may recover its response costs pursuant to Section 107(a)(4). 42 U.S.C. § 9607(a)(4). “The remedy that Congress felt it needed in CERCLA is sweeping: everyone who is potentially respottsible for hazardous-waste contamination may be forced to contribute to the cost of cleanup.” Pennsylvania v. Union Gas Co., 491 US. 1, 7 (1989) (plurality opinion of Brennan, J.), overruled on other grounds, Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996). Congress identified four broad classes of PRPs in Section 107(a)(1}{4). 42 U.S.C. § 9607(a). In particular, Congress both expressly provided that the United States is itself a “person” potentially liable under CERCLA and explicitly waived the sovereign immunity of the United States so that it could be sued for the costs of cleaning up contamination for which it is responsible. 42 U.S.C. §§ 9601(21), 9620(a)(1). Section 107(a)(4) provides that PRPs “shall be liable for _. . (A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan.” Of particular relevance here, it also provides that PRPs are liable for “(B) any other-necessary costs of response incurred by any other person consistent with the national contingency plan.” 42 U.S.C. §§ 9607(a)(4)(A), (B) (emphasis added). The “national contingency plan” is an EPA regulation specifying procedures for responding to hazardous substance contamination. See 40 C:F.R. Part 300 (2004). 2. As this Court explained in Cooper, after the enactment of CERCLA in 1980, various lower courts held that (1) PRPs that had incurred response costs voluntanily, without having first 4 been sued in a Section 106 or 107 civil action, were expressly authorized by Section 107(a)(4)(B) to recover their costs from other PRPs, and (2) PRPs that had been sued in a Section 106 or 107 civil action had a right to contribution from other PRPs, either impliedly from the Provisions of the statute or as a matter of federal common law, even though CERCLA as originally enacted “did not mention the word ‘contribution’. . . .” 543 US. at 162. See also Key Tronic Corp. v. United States, S11 U.S. 809, 816 (1994) (“numerous cases” interpreted CERCLA — “particularly .. . § 9607... .” — to authorize a cause of action for “‘a private party that had incurred cleanup costs to seek contribution from other PRPs”). Thus, after the enactment of CERCLA, PRPs were permitted to recover a Proportionate share of their response costs from other PRPs in two different and distinct procedural circumstances: when they had incurred those costs in the absence of a Section 106 or 107 civil action, under the express provision of Section 107(a)(4)(B); or when they had been sued in a Section 106 or 107 civil action, by implication of such a right under the Act or as a matter of common law. To allay any concem that the latter line of cases implying a right to contribution under the Statute might be “debatable” (Cooper, 543 U.S. at 162) in light of Northwest Airlines, Inc. y. Transportation Workers Union of America, 451 U.S. 77, 90-99 (1981), and Texas Industries, Inc. v, Radcliff Materials, Inc., 451 U.S. 630, 638-647 (1981) (refusing to recognize implied or common-law rights to contribution under Statutes Other than CERCLA), Congress included an express contribution right in the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Pub.L. No. 99-44, 100 Stat. 1613. It amended CERCLA to include Section | 13(f), which provides, inter alia, that “[a] person may seek contribution from any other person who is liable or potentially liable under [Section 107], during or following any civil-action under [Section 106] or under {Section 107].” 42 U.S.C. § 9613(f)(1). Section | 13(f)(1) also contains a savings clause: “Nothing in this subsection shall 5 diminish the right of any person to bring an action for contribution in the absence of a civil action under [Section 106] or under [Section 107].” Id. Thus, as this Court explained in Cooper, “fijn short, after SARA, CERCLA provided for a right to cost recovery in certain circumstances, § 107(a), and separate rights to contribution in other circumstances, §§ 113(f)(1), 113(f)(3)(B).” 543 U.S. at 163. In Key Tronic, this Court described those remedies as “similar and somewhat overlapping.” 511 U.S. at 816. In Cooper, the Court observed that “[t]he cost recovery remedy of § 107(a)(4)(B) and the contribution remedy of § 113(f)(1) are similar at a general level in that they both allow private parties to recoup costs from other private parties . . . [bJut the two remedies are clearly distinct.” 543 U.S. at 163 n3. 3. In the 18 years between the passage of SARA and this Court’s decision in Cooper, the lower courts broadly construed Section 113(f)(1) to permit a PRP to recoup cleanup costs from other PRPs in both of the circumstances covered by pre-SARA law, regardless of whether there had been a prior Section 106 or 107 civil action. See, e.g., /nre Reading Co., 115 F.3d 1111 (3d Cir. 1997); New Castle County v. Halliburton NUS Corp., \\1 F.3d 1116 (3d Cir. 1997); PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610 (7th Cir. 1998). Based on this understanding, the courts treated Section 1 13(f)(1) as the exclusive means by which one PRP could recover contribution from other PRPs, whether or not there had been a Section 106 or 107 civil action. See, e.g., Reading, New Castle, PMC. Because at the time Section | 13(f)(1) provided a cause of action to a PRP to recover an equitable share of its response costs from other PRPs even in the absence of a Section 106 or 107 civil action, courts held that a separate cause of action did not arise under Section 107(a) on the ground that a Section 107(a) right would be duplicative of Section 113(f)(1) and would allow circumvention of the express and inclusive right in Section 113(f)(1). 6 in Cooper, this Court, relying upon the “natural meaning” of the enabling clause in the first sentence of Section 1 13(f)(1), upset this long-held understanding and limited the applicability of Section 1 13(f)(1) to contribution claims asserted “during or following” a Section 106 or 107 civil action. At the same time, the Court noted that the specific purpose of the savings clause in last sentence of Section 113(f)(1) “is to clarify that § 113(f)(1) does nothing to ‘diminish’ any cause(s) of action for contribution that may exist independently of § 113(f)(1). In other words, the sentence rebuts any presumption that the express right of contribution provided by the enabling clause is the exclusive cause of action for contribution available to a PRP.” 543 U.S. at 166-67. Two Justices, writing separately in Cooper, would have held that Section 107(a)(4)(B) provides such a right where a Section 113(f)(1) cause of action would be unavailable under Cooper. See 543 U.S. at 172-74 (Ginsburg, J., joined by Stevens, J., dissenting). 4. Following the Court's decision in Cooper, a unanimous panel of the Second Circuit held in Consolidated Edison that a PRP that voluntarily incurs response costs, in the absence of a prior Section 106 or 107 civil action, may seek cost recovery from other PRPs under Section 107(a)(4)(B). Based on Cooper’s explanation that the Section 107(a) and the Section 113(f)(1) nghts, although “similar at a general level in that they both allow private parties to recoup costs from other private parties,” are “clearly distinct,” and in light of the holding of Cooper “that a section 113(f)(1) action is only available during or following a specified civil action,” the court of appeals concluded “‘that it no longer makes sense to view section 113(f)(1) as the [exclusive] means by which the section 107(a) cost recovery remedy is effectuated by [PRPs]. Each of those sections, 107(a) and 1 | 3(f)(1), embodies a mechanism for cost recovery available to persons in different procedural circumstances.” Consol. Edison, 423 F.3d at 99. The court reasoned that “[g]iven that section 107(a) is distinct and independent from section 1 13(f)(1), and that section | 1 3(f)(1)’s remedies are not available to a person 7 in the absence of a civil action as specified in that section, determining whether a party in [the plaintiff's} circumstances may sue under section 107(a) is easily resolved based on that section’s plain language. Section 107(a) makes parties liable for the government’s remedial and removal costs and for ‘any other necessary costs of response incurred by any other person consistent with the national contingency plan.”” /d. Furthermore, “{uJnlike some other courts, we find no basis for reading into this language a distinction between so-called ‘innocent’ parties and [PRPs]. Section 107(a) makes its cost recovery remedy available, in quite simple language, to any person that has incurred necessary costs of response, and nowhere docs the plain language of section 107(a) require that the party seeking necessary costs of response be innocent of wrongdoing.” Jd. at 99-100 (citation omitted). Subsequent to Consolidated Edison, another unanimous panel of the Second Circuit reached the same conclusion. See Schaefer, 457 F.3d 188. ay Following the Second Circuit's decision in Consolidated Edison, a unanimous panel of the Eighth Circuit also reached the same conclusion. In Atlantic Research Corporation v. United States, the court held “that a private party which voluntarily undertakes a cleanup for which it may be held liable, thus barring it from contribution under CERCLA’s § 113, may pursue an action for direct recovery or contribution under § 107, against another liable party.” 459 F.3d 827, 837 (8th Cir. 2006). In that case, Atlantic Research and the United States were both PRPs, and the company undertook a cleanup without the compulsion of a Section 106 or 107 civil action. The Eighth Circuit, after holding that Cooper was sufficient intervening authority for it to reconsider the prior law of the circuit that Section 113(f)(1) provided the exclusive cause of action, reviewed the pre-Cooper judicial} interpretations of the relationship between Sections 107(a) and 113(f)(1) in which the courts “direct[ed] traffic” between the two by narrowly construing Section 107(a) to be unavailable where Section 113(f)(1) authorized a PRP to sue other PRPs for contribution. /d. at 832. Relying on the in 8 conclusion of Cooper that the two remedies are “distinct,” the court determined that “it is no longer appropriate to view § 107’s remedies exclusively through a § 113 prism.” /d. at 835. As the court explained: “We reject an approach which categorically deprives a liable party of a § 107 remedy. Like the Second Circuit, we return to the text of CERCLA, and find no such limitation in Congress’s words.” Id. In line with the Second Circuit, the Eighth Circuit held that each section “embodies a mechanism for cost recovery available to persons in different procedural circumstances.” /d. The court concluded that the “plain text” of the Savings clause in Section 113(f(1) reflects an express congressional intent to Preserve other rights to contribution and “discern[ed] nothing in CERCLA’s words Suggesting Congress intended to establish a comprehensive contribution and cost recovery scheme encouraging private cleanup of contaminated sites, while simultaneously excepting — indeed, penalizing — those who voluntarily assume such duties.” /d. at 836. The court pointed out that a ruling barring recovery under Section 107(a)(4) would not only be contrary to CERCLA’s purpose of making those responsible for contamination pay for their share of the cleanup but, in the case of the United States as a PRP, it would produce “‘an absurd and unjust outcome” because “the government could insulate itself trom responsibility for its own pollution by simply declining to bring aCERCLA Cleanup action or refusing a liable party’s offer to settle. This bizarre outcome would eviscerate CERCLA whenever the government, itself, was partially responsible for a site’s contamination.” /d. B. The History Of This Case. !. DuPont filed this case against the United States in December 1997. It asserted claims to recover an equitable share of response costs it had incurred and would incur in the future in cleaning up 15 industrial facilities that were involved in wartime production. Both DuPont and the United States are responsible for some of the contamination and thus are PRPs — 9 under CERCLA. DuPont had not been subject to a civil action under Section 106 or 107.’ In July 1999, the district court ordered that DuPont's claim with respect to its plant at Louisville, Kentucky be prepared as a test case, and discovery was stayed as to the remaining 14 facilities. The United States admitted, and the district court held, that the government was liable with respect to the Louisville plant under CERCLA. Through July 2000, DuPont had spent approximately $24 million investigating and cleaning up hazardous substance contamination at the Louisville plant. The United States, even though liable along with DuPont for that contamination, has contributed nothing to those costs. 2. Insofar as relevant here, the district court granted summary judgment to the United States on DuPont's Section 113(f)(1) claim with respect to the Louisville plant on the ground that Section 113(f)(1) of CERCLA did not authorize DuPont's claim for contribution in the absence of a Section 106 or 107 civil action. Following further proceedings, the district court dismissed with prejudice DuPont’s complaint as to all sites. On DuPont's appeal, a divided panel of the Third Circuit affirmed the orders of the district court in all relevant respects. The panel held that under Third Circuit precedent (which it 2. The DuPont cleanups involved in this case were “voluntary” in the sense that they were not compelled by a Section 106 of 107 civil action. Rather, they were undertaken pursuant to federal and state environmental statutes and subject to regulatory oversight either by EPA or a counterpart state agency. For example, at the Louisville plant that was the focus of the proceedings in the district court, the cleanup occurred pursuant to a permit issued under the corrective action program of the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act and the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 ef seq. (“RCRA”). (During the course of the appeal, it was learned that, in 2001, the Necco Park site had been the subject of a Section 107 action. Accordingly, the court of appeals altered the district court's dismissal to be without prejudice. See App., infra, 62a n.33.) ee I A Ae Sem ee eee = eee - ~ — 10 concluded it could not reconsider after Cooper), Section 107(a) authorizes suit only by an “innocent party” against PRPs and therefore could not be invoked by a plaintiff PRP like DuPont. In adhering to this interpretation, the Panel expressly disagreed with the Post-Cooper decisions of the Second and Eighth Circuits. See App., infra, 27a-31a, 60a. Furthermore, while those Third Circuit precedents had entitled a PRP to bring a Section | 13(f)(1) suit against other PRPs even if it had not been subject to a Section 106 or 107 civil action, such a remedy now was foreclosed by Cooper. As a result of Cooper and the panel’s adherence to its “innocent party” decisions under Section 107, a PRP like DuPont that had not been sued under Section 106 or 107 but voluntarily undertook a cleanup has no right to sue other PRPs to recover encourage voluntary cleanups that might not be supervised bya governmental agency but rather meant to promote only supervised cleanups in accordance with litigation, a consent decree, or an administrative settlement. Id. at 46a-47a. Section 106 of 107 action could sue other PRPs under Section 107(a) for an equitable share of its Cleanup costs. As Judge Sloviter explained, this interpretation was required by the plain language of Section 107(a), the text and history of the savings clause to preserve existing rights to contribution, and the fundamental congressional objectives of achieving prompt cleanups of contaminated Sites and requiring each PRP to bear the cost of its pollution. 2S 1] REASONS FOR GRANTING THE PETITION I. THERE IS A SQUARE AND EXPLICIT CIRCUIT CONFLICT ON THE IMPORTANT AND RECURRING CERCLA ISSUE PRESENTED IN THIS CASE. As explained above (see pages 1-2, supra), there is a square and explicit conflict among the circuits on the CERCLA issue that this Court left open in Cooper. The Second and Eighth Circuits, in line with the views expressed by Justice Ginsburg and Justice Stevens in Cooper, have held that a PRP that voluntarily undertakes a cleanup without the compulsion of a Section 106 or Section 107 civil action, and therefore that cannot bring a contribution action under Section 1 13(f)(1) as construed in Cooper, is entitled to sue other PRPs to recover an equitable portion of the cleanup costs under Section 107. In contrast, the Third Circuit in this case rejected such a cause of action. Both the panel majority and Judge Sloviter in dissent expressly recognized that the panel’s ruling conflicted with the decisions of the Second and Eighth Circuits. See App., infra, 27a-31a, 60a; id. at 69a (Sloviter, J., dissenting). Furthermore, the Solicitor General, in the government's petition for certiorari in Atlantic Research, acknowledges this “clear” and “direct” conflict. Atl. Research Pet. 8, 9. In addition, the CERCLA question in this case presents an important and recurring issue that calls for this Court’s review. Indeed, review is warranted here for precisely the same reasons that certiorari was granted in Cooper. Moreover, with specific respect to the issue that Cooper left open and that is presented here, the Court in Cooper noted “the importance of the § 107 issue” (543 U.S. at 170) and explained that “the relationship between §§ 107 and 113. . . is a significant issue in its own right.” /d. at 169;. see also id. at 172-74 (Ginsburg, J., dissenting) (noting need for resolution of the issue). Furthermore, this circuit conflict is now ripe for resolution. Following Cooper, three circuits have addressed the issue and 12 rendered lengthy opinions. Absent the Court’s intervention, this conflict will persist and cause needless uncertainty in the regulated and environmental communities and unnecessary litigation in the courts. See also Cooper, 543 U.S. at 174 (Ginsburg, J., dissenting) (expressing a desire to avoid protracting litigation). The need for this Court’s immediate guidance is reinforced by the unsettled state of CERCLA law after Cooper. Prior to Cooper, every circuit to consider the issue allowed a PRP in the circumstances of this case to sue other PRPs for contribution. Most of those decisions grounded the cause of action in Section 1 13(t)(1) and, concomitantly, reasoned that Section 107(a) could not be utilized to duplicate the remedy, or evade the restrictions, in Section 113(f)(1). Now that Cooper has rejected the Section 113(f)(1) claim, the prevailing law in each of those circuits, unless and until revisited by the court of appeals, is that Section 107(a) does not provide a cause of action. This ongoing uncertainty and circuit-by-circuit litigation are both detrimental to CERCLA implementation and burdensome to the judicial system and litigants alike. Worse yet, under the decision below, the prevailing law of CERCLA has been tured upside down. While prior to Cooper PRPs like petitioners could have brought cases like this one against other PRPs, the Third Circuit has held (contrary to the Second and Eighth Circuits) that Cooper does not justify reconsideration of its Section 107(a) precedents. Under the Third Circuit’s decision, the right of action that existed before Cooper now has simply evaporated. Although Cooper of course rejected the Section 113(f)(1) claim, that is all that it rejected. If the consequence of Cuoper is that there is no such right of action at all — not only under Section 113(f)(1) but under Section 107(a) and federal common law as well — it is this Court that should say so. And if that is to be the law going forward, it is critical that companies, the executive branch, and Congress know it as soon as possible. 13 Finally, this case provides the appropriate vehicle for the Court’s resolution of the issue. Because the Third Circuit's decision is the latest in the post-Cooper line of rulings and gives rise to the conflict, it represents the most suitable case for the Court to review and will serve to sharpen the Court’s consideration of the question presented. Furthermore, because only this case presents the question whether a cause of action exists under federal common law as well as under Section 107(a), it provides the full range of issues for decision by this Court; disposition of the question presented in Consolidated Edison and in Atlantic Research would leave the federal- common-law issue unresolved. Accordingly, this petition for a writ of certiorari should be granted and the judgment of the Third Circuit reversed. il. THE THIRD CIRCUIT ERRED IN REJECTING A PRP’S CAUSE OF ACTION TO RECOVER AN EQUITABLE SHARE OF CLEANUP COSTS FROM OTHER RESPONSIBLE PARTIES. The question in this case is whether, following Cooper, a PRP that voluntarily undertakes a cleanup and incurs costs without the compulsion of a Section 106 or Section 107 civil action has no cause of action to recover an equitable share of cleanup costs from other potentially responsible parties and therefore must itself bear the entire cost of the cleanup. The Third Circuit’s rejection of that cause of action is supported neither by legal principles governing CERCLA and federal common law nor by considerations of fairness and common sense. The plain language of the liability provision in Section 107(a)(4)(B) and of the savings clause in Section 113(f)(1) demonstrates the existence of this right of action. Furthermore, this reading is confirmed by the background of the statute and the evolution of the case law under it. Likewise, such a cause of action is necessary to effectuate the fundamental objectives of CERCLA. Finally, beyond the statutory right itself, federal common law establishes a cause of action for contribution. - 14 In Key Tronic, this Court recognized that “§ 107 unquestionably provides a cause of action for [PRPs] to seek recovery of cleanup costs” and “authorizes [PRPs] to recover cleanup costs from other PRPs.” 511 US. at 818; id. at 821 (Scalia, J. dissenting) (“[under] §§ 107(a)(4)(A) and (B), a [PRP] who has incurred costs to clean up a hazardous waste site can recover those costs from any other party liable under CERCLA”). To be sure, the Court divided over whether this Section 107 cause of action was explicit or implicit in CERCLA; the majority opinion written by Justice Stevens concluded that it was implied, while Justice Scalia’s dissent indicated that it was express. See id. at 818 at n.11; id. at 822 (Scalia, J., dissenting). Notwithstanding that division in the context of the issue of attorneys’ fees in Key Tronic, petitioners submit, for the reasons discussed infra, that the better analysis is that Section 107(a) expressly rather than implicitly establishes the night of a PRP to recover an equitable share of cleanup costs from other PRPs. Indeed, the Second and Eighth Circuits have so held.? In the end, however, whatever the correct analytical framework, the overarching and controlling point is that a// the Justices agreed in Key Tronic that Section 107 does provide such a cause of action. As Justice Ginsburg recently explained, Key Tronic rested “squarely and solely on § 107(a)(4)(B),” and “no Justice [in Key Tronic] expressed the slightest doubt that § 107 indeed did enable a PRP to sue other covered persons [PRPs} for reimbursement, in whole or in part, of cleanup costs the PRP legitimately incurred,” Cooper, 543 U.S. at 172 (Ginsburg, J., dissenting). 3. Petitioners believe that the best reading of Key Tronic is that the majority referred to the cause of action as “implied” in the sense that its scope and meaning had to be filled in by implication rather than in the sense that the Court has used that term in cases such as Northwest Airlines and Texas Industries. See pages 25-27, infra. = 15 A. Section 107(a)(4)(B) Provides An Express Cause Of Action. ~ 1. The plain statutory language establishes the Section 107(a) cause of action. Cooper holds that CERCLA must be construed in accordance with its “natural meaning.” 543 U.S. at 166; see also Engine Mfrs. Ass'n v. S. Coast Air Quality Megmi. Dist., 541 U.S. 246, 257 (2004); Conn. Nat'l Bank v. Germaine, 503 U.S. 249, 253-54 (1992). The plain statutory text establishes that a PRP can recover an equitable share of cleanup costs from other PRPs pursuant to Section 107. Indeed, as Key Tronic - explained, Section 107(a) creates “a similar and somewhat overlapping remedy” to the cause of action for contribution in Section 113(f(1). 511 U.S. at 816. By its own admission, the Third Circuit’s decision is at odds with Key Tronic: by holding that only innocent parties can proceed under Section 107 and that PRPs cannot sue under Section 107 even if the requirements for a Section 113(f)(1) suit under Cooper are not met, the court of appeals has left a gaping hole that renders Sections 107 and 113 “complementary .. . but not really ‘overlapping,’ as the Supreme Court had suggested in Key Tronic...” App., infra, 14a. Entitled “{I]iability,” Section 107 states that any person in the four enumerated categories of PRPs “shall be liable for . . . any other necessary costs of response incurred by any other person consistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(B) (emphasis added). The language of Section 107(a)(4)(B) is expansive. It refers, without limitation, to “any other person.” Under Section 101 (21), “person” is broadly defined: “[t]he term ‘person’ means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body.” 42 U.S.C. § 9601 (21). Accordingly, under Section 107(a)(4)(B), a PRP is liable to “any other person,” 16 including another PRP, for an equitable share of cleanup costs. See Key Tronic, 511 U.S. at 818 (Section 107 “authorizes private parties to recover cleanup costs from other PRPs”); id. at 821- 22 & n.* (Scalia, J., dissenting) (under Section 107(a), “a party who has incurred costs to cleanup a hazardous waste site can recover those costs from any other party liable under CERCLA”); Cooper, 543 U.S. at 172 (Ginsburg, J., dissenting); Consol. Edison, 423 F.3d at 99-100; Atl. Research, 459 F.3d at 834-35; App., infra, 72a (Sloviter, J., dissenting). The Third Circuit and other courts have construed Section 107(a)(4)(B) to be limited to “innocent parties”; under this reading, a Section 107(a) cause of action is available only to entities that have no responsibility for the contamination or cleanup, thus excluding PRPs. See App., infra, 26a. However, Section 107(a) contains no such restrictive language and the term “innocent party” appears nowhere in the statute. Rather, as explained above, PRPs fit comfortably within Section 107(a)(4)(B)’s broad sweep. See Key Tronic, 511 U.S. at 818 (emphasis added) (Section 107 “authorizes private parties to recover cleanup costs from other PRPs’’); see also id. at 821 (Scalia, J., dissenting) (under Section 107(a), “a party who has incurred costs to cleanup a hazardous waste site can recover those costs from any other party liable under CERCLA”) (emphasis added); Consol. Edison, 423 F.3d at 99-100; Az/. Research, 459 F.3d at 834-35. In addition to the text of Section 107(a)(4)(B), the Third Circuit's interpretation of the savings clause in Section 1 13(f)( 1) is irreconcilable with Cooper. The savings clause provides: “Nothing in this subsection shal] diminish the right of any person to bring an action for contribution in the absence of a civil action under section [106] of this title or section [107] of this title.” 42 U.S.C. § 9613 (f)(1). The gravamen of the decision below is that Section 113(f) provides the sole and exclusive means for a PRP to recover an equitable share of cleanup costs from other PRPs. That reading is diametrically opposed to the text of the 17 savings clause. As this Court held with unmistakable clarity in Cooper, the savings clause in Section 113(f)(1) “rebuis any presumption that the express right of contribution . . . [in Section 113(f)(1)] is the exclusive cause of action for contribution available to a PRP.” 543 U.S. at 166-67 (emphasis added); see also Key Tronic, 511 U.S. at 816 (Sections 1 13(f)(1) and 107(a) provide “similar and somewhat overlapping remed[ies]”). Furthermore, the Third Circuit's interpretation renders the savings clause a nullity. Under its decision, the savings clause does nothing more than “merely clarif[y]” that the cause of action provided in Section 113(f)(3) for contribution suits after settlements is not displaced by, or subject to the same preconditions found in, the separate contribution, action in Section 113(f)(1). App., infra, 35a. With all due respect, it is impossible to believe that, even absent the savings clause, the separate, distinct, and contemporaneously enacted provisions in two subsections of Section 1 13(f) would have been misread and collapsed in the manner that concerned the Third Circuit. If Congress had meant the savings clause in Section | 13(f)(1) to apply only to the cause of action in Section 113(f})(3) — two subsections of the same section that were enacted at the same time — it surely would have said so. The court’s construction improperly trivializes the important office of the savings clause. Finally, prior to Cooper, courts in rejecting a Section 107(a) suit by a PRP against other PRPs expressed concern that such a cause of action would duplicate the contribution action in Section | 13(f)(1) and allow a PRP to elect to sue under Section 107(a) rather than under Section 113(f)({1), thereby circumventing the statutory preconditions on the Section 113(f)(1) right. See Atl. Research, 459 F.3d at 832-33. Cooper, however, eliminates any such concern. After Cooper, a PRP has no ability to choose to proceed under one or the other of those provisions; rather, Sections 107(a) and 113(f)(1) “embodly different] mechanism{s] for cost recovery available to persons in different procedural circumstances.” Consol. Edison, 423 F.3d at 99: see also Atl. Research, 459 F.3d at 833-34. Thus, for a 18 PRP that has been subject to a civil action under Sections 106 or 107, the appropriate contribution claim arises under Section 113(f)(1) as Cooper held; for a PRP in other Circumstances, Section 107(a)(4)(B) provides the cause of action; but in neither event is there duplication or circumvention of the Statutory scheme as construed in Cooper. 2. The background, history, and purpose of CERCLA demonstrate the existence of the Section 107(a) cause of action. The Third Circuit’s decision, in rejecting a Section 107(a) cause of action, frustrates the congressional understanding in CERCLA. The background, history, and purpose of CERCLA confirm what the plain statutory language shows: that Section 107(a) provides a cause of action for a PRP to recover an equitable share of cleanup costs from other PRPs. a. The Third Circuit’s ruling turns upside down the congressional intent in amending CERCLA in 1986 by enacting SARA. As explained above (see pages 4-5, supra), SARA included both the express contribution provision and the savings clause in Section 113(f)(1). Congress made explicit in the savings Clause that, by adopting the express provision for contribution in specified circumstances in Section 113(f)(1), it did not intend to “diminish the right of any person to bring an action for contribution in the absence of a civil action under [Sections 106 or 107].” 42 U.S.C. § 9613(f)(1). Accordingly, in enacting Section | 13(f)(1), Congress did not abrogate any right of contribution that existed before SARA in circumstances where Section 113(f)({1) would be inapplicable because, under Cooper, of the absence of a Section 106 or 107 civil action. In this way, it expressly preserved the two causes of action — and in particular the cause of action under Section 107(a)(4)(B) — that predated SARA. As previously discussed (see pages 3-4, supra), and as the Third Circuit recognized, the case law prior to the 1986 SARA amendments “allowed private parties, including PRPs, to seek 19 contribution for costs incurred in forced or voluntary cleanups.” App., infra, 9a; see also Cooper, 543 U.S. at 161-62 (pre-SARA cases held that “a private party that had incurred response costs, but that had done so voluntarily and was not itself subject to suit, had a cause of action for cost recovery against other PRPs”). Thus, pre-SARA law would have allowed petitioners to bring this action against the United States as a PRP. The effect of the Third Circuit’s decision, therefore, is to attribute to Congress in 1986 the intent to cut back on contribution rights by eliminating the existing cause of action between PRPs in cases of voluntary cleanups. As thc court of appeals was forced to concede, however, there is nothing in the legislative history that so much as hints at such a retrogressive intent. App., infra, 47a. In fact, the savings clause is expressly to the contrary. Furthermore, the tegislative history underscores that Congress in enacting Section 113(f)(1) did not contemplate the restriction or elimination of contribution rights under pre- SAP.A law. See, ¢.g., H.-R. Rep. No. 99-253 (I) at 79 (1985), reprinied in 1986 US.C.C.A.N. 2835, 2861 (one of the principal goals was to “clarif[y] and confirm } the right of a person held jointly and severely liable . - - under CERCLA to seek contribution from other potentially liable parties, when the person believes that it has assumed a share of the clean-up or cost that may be greater than its equitable share”); Oversight Hearings Before the House Subcomm. on Admin. Law and Governmental Relations, Comm. on Judiciary, 99th Cong. 51 (1985) (“[t]he fairness of a joint and several scheme depends upon the availability of contribution”). Thus, in enacting Section 113(f)(1), Congress did not intend “to eliminate the preexisting right to contribution.” Aé/. Research, 459 F.3d at 836. b. The Third Circuit’s decision also would defeat rather than advance the fundamental congressional purposes in CERCLA. As this Court and the lower courts consistently have recognized, the statute has two principal objectives: (1) to promote the prompt and voluntary cleanup of hazardous waste sites; and (2) to ensure that the parties responsible for the 20 pollution bear the cost of the cleanup. United States v. Bestfoods, 524 U.S. 51, 56 (1998) (“/eJveryone who is potentially responsible for hazardous-waste contamination may be forced to contribute to the costs of cleanup”) (quoting Pennsylvania v, Union Gas Co., 491 U.S. at 21 (1989) (emphasis in original)); Consol. Edison, 423 F.3d at 94 ([“t]wo of [CERCLA’s] primary goals include ‘encourag[ing] the timely cleanup of hazardous waste sites,” and ‘plac[ing] the cost of that [cleanup] on those responsible”); Ail. Research, 459 F.3d at 837 (“CERCLA’s goal of encouraging prompt and voluntary cleanup of contaminated sites”). The Third Circuit’s decision impairs both policies. First, by precluding contribution, it will discourage PRPs from undertaking prompt cleanups on a voluntary basis. See Consol. Edison, 423 F.3d at 100 (elimination of Section 107(a) action would “impermissibly discourag{e] voluntary cleanup” and “would create a perverse incentive for PRPs to wait until they are sued before incurring response costs”); Au/. Research, 459 F.3d at 837. Indeed, the district court below (whose judgment the Third Circuit affirmed) explicitly recognized that the rejection of a Section 107(a) action “might very well hamper some PRP efforts at removal and remediation of hazard[ous] waste sites.” App., infra, 103a. Second, the Third Circuit’s decision violates the “polluter pays” principle. This case well illustrates that problem. Here, although the United States has contributed to the contamination at the sites at issue, petitioners bear 100% of the cost of the cleanup and the government avoids liability altogether. Both the Second and Eighth Circuits recognized these inherent defects in the approach adopted by the Third Circuit. They therefore upheld a Section 107(a) action to promote rather than defeat the purposes of Congress. See Consol. Edison, 423 F.3d at 100; Schaefer, 457 F.3d at 201; Atl. Research, 459 F.3d at 837. 21 To justify its result, the Third Circuit sought to draw a bright line between voluntary cleanups and those pursuant to 4 settlement between the PRP and EPA. See App., infra, 46a-57a. The court emphasized the advantages of cleanups that were supervised by the EPA and pointed to two CERCLA provisions designed to encourage PRPs to enter into settlements. See id. at 35a. It isa far cry, however from concluding that, by encouraging settlements for cleanups, Congress meant to discourage or eliminate voluntary cleanups. See id. at 73a (Sloviter, J., dissenting). There is nothing in the statute or legislative history that excludes voluntary cleanups from contribution actions between PRPs. On the contrary, while, as the Third Circuit pointed out, Congress recognized the desirability- of settlements, it also referred to voluntary cleanups. See App., infra, 72a-73a (Sloviter, J., dissenting); H. R. Rer. No. 96-1016(1), 96 Cong., 2nd Sess. at 16-17 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6120 (1980) (emphasis added) (CERCLA “would also establish a federal cause of action . . . to induce such persons voluntarily to pursue appropriate environmental response actions”), 131 Conc. Rec. 24,725, 24,730 (1985) (statement of Sen. Domenic) (emphasis added) (“The goal of CERCLA is to achieve effective and expedited cleanup of as many uncontrolled hazardous waste facilities as possible. One important component of the realistic strategy must be the encouragement of voluntary cleanup actions or funding without having the President rely on the panoply of administrative and judicial tools available”); 126 Conc. REC. 26,388 (1980) (remarks of Rep. Florio) (emphasis added) (CERCLA provides “a strong incentive both for prevention of releases and voluntary cleanup of releases by responsible parties’’). Both this Court and other courts previously have recognized that the statute contemplates and encourages voluntary cleanups. See Union Gas, 491 US. at 21-22 (plurality opinion of Brennan, J.) (emphasis added) (Congress “allow{ed] private parties who voluntarily cleaned up hazardous-waste sites to recover a 22 proportionate amount of the costs of cleanup from other {[PRPs]”), overruled on other grounds, Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1 996); Fisher Dev. Co. v. Boise Cascade Corp., 37 F.3d 104, 112 n2 (3d Cir. 1994) (referring to Congress’s “goal of encouraging voluntary cleanup efforts” and citing to both Section 107(a) and Section 113(f)(1)); Add. Research, 459 F.3d at 837. The Third Circuit thought it significant that it had “not found evidence in the legislative history that Congress contemplated th[{e statute} would extend a contribution right to PRPs engaged in entirely voluntary cleanups.” App., infra, 40a. The issue, however, is not whether Congress intended to “extend” this cause of action but rather whether it sought to eliminate this existing right. Moreover, given the other indications of congressional intent in the text, background, and purposes of CERCLA, it was unnecessary for Congress to state this principle in haec verba in the legislative history. See Harrison v. PPG Indus., Inc., 446 U.S. 578, 592 (1980) (Congress is not required to state in legislative history that which is otherwise clear); Morales yv. Trans World Airlines, Inc., 504 US. 374, 386 n.2 (1992) (same); Whitfield v. United States, 543 U.S. 209, 215- 16 (2005) (rejecting interpretation based on argument that “the history contains no indication .. . [of what] Congress meant”). What is more, the Third Circuit overlooked the limitations On settlements. For example, settlements are not cost-free. They take time, which could delay investigatory or remedial activities and impede cleanup actions that would be more effective if implemented immediately. Likewise, they take resources to negotiate, including the time of both company representatives and government officials. Indeed, federal and state governments often devote their personnel to Pursuing investigations, enforcement, and cleanups rather than to negotiating settlements; if voluntary cleanups are discouraged in favor of settlements, the result would be that far fewer sites would-be cleaned up. In short, these transaction costs can discourage negotiations, hinder 23 the clean-up process, and consume resources that are better spent on the cleanups themselves. In addition, even if cleanups pursuant to negotiated settlements are desirable, such settlements are not always obtainable for a variety of reasons. It is impossible to believe __ and the Third Circuit cited no support in the text, history, or purposes of CERCLA — that Congress would have intended to require PRPs in that situation to forgo voluntary cleanups, do nothing, and await administrative enforcement or judicial litigation. Indeed, for Congress to prefer that course would verge on the absurd. The Third Circuit also stated that EPA disfavors voluntary cleanups, but that is simply not the case. EPA has often lauded voluntary cleanup efforts and even expressed concern that Cooper might reduce the incentive for voluntary cleanups. App., infra, 73a-74a (Sloviter, J., dissenting). In fact, in 1984 — immediately preceding the drafting and consideration of the 1986 SARA amendments — EPA stated that it was “preferable for private parties to conduct cleanups themselves” and therefore endeavored to “remove or minimize if possible the impediments to voluntary cleanup.” Lee M. Thomas & F. Henry Habicht II, U.S. EPA, Interim CERCLA Settlement Policy (OSWER Directive No. 9835.0) (1984); see also 48 Fed. Reg. 40,658, 40,661 (Sept. 8, 1983) (referring to “[vJoluntary or negotiated cleanup” and stating that EPA does “not intend{ }] to preclude responsible parties from taking voluntary response actions outside of a consent agreement”); 55 Fed. Reg. 8666, 8792- 8793 (Mar. 8, 1990) (“EPA believes it is important to encourage private parties to perform voluntary cleanups of sites and to remove unnecessary obstacles to their ability to recover their costs from the parties that are liable for the contamination”). Moreover, even if EPA held the views ascribed to it by the Third Circuit, there is no indication that those views were known to, let alone accepted by, Congress — as the Third Circuit acknowledged. See App., infra, 54a. 24 : The Third Circuit estimated that approximately 70% of all Cleanups are undertaken voluntarily. App., infra, 36a-37a. Furthermore, as stated by the Superfund Settlements Project and the American Chemistry Council as amici curiae below, the Third Circuit’s decision would “discourage and delay the cleanup of contaminated sites around the country” — cleanups that are “heavily dependent on voluntary and cooperative action by the private sector.” Am. Br. 3-4. These deleterious consequences, affecting critically important Cleanup efforts at innumerable sites, should not be borne based on the Third Circuit’s decision. - 3. The Third Circuit’s rejection of a Section 107(a) cause of action puts the United States in a preferred position over other PRPs and therefore is inconsistent with congressional intent. The Third Circuit’s decision favors the United States over other PRPs. App., infra, 28a n.18, 56a-57a n.31. In this way, it departs from a central purpose of CERCLA to treat all PRPs, including the government, in the same way. The Eighth Circuit squarely rejected that outcome. See Ai/. Research, 459 F.3d at 837. Section 120(a)(1) of CERCLA expressly provides that the United States is to be liable “in the same manner and to the same extent. . . as any nongovernmental entity, including liability under [Section 107].” 42 U.S.C. § 9620(a)(1). See also Union Gas, 491 U.S. at 10; FMC Corp. v. U.S. Dep t of Commerce, 29 F.3d 833, 840-41 (3d Cir. 1994) (en banc). However, the United States occupies a unique Position: it is both an enforcer of environmental laws (usually through EPA) and a PRP (usually one of the military services) liable under the environmental laws. In fact, EPA has long been prohibited from proceeding under CERCLA against other federal agencies (see Exec. Order No. 12,580, § 4(a), 52 Fed. Reg. 2923 (Jan. 23, 1987)), and in practice the Department of Justice does not permit EPA to sue or issue cleanup orders to other federal agencies. The Third 25 Circuit’s decision, by precluding a PRP’s Section 107 action against the United States in the circumstances presented here, means that the government can avoid cleanup liability for CERCLA violations simply by choosing not to enforce the law against itself — exactly contrary to the congressional purpose in Section 120(a) to put the United States on an equal ‘liability footing with private PRPs. This result is particularly problematic in light of the policy of Section 120(a) because the United States, unlike private PRPs, cannot be sued under state law in state courts; the result of the decision below, therefore, is to remove the only available forum in which to hold the government accountable, thereby enabling it to escape liability altogether. In sum, the Third Circuit’s decision allows the United States to avoid its fair share of cleanup costs under CERCLA — a liability that the government itself has described as “massive.” FMC, 29 F.3d at 846. Such a result is contrary to Congress’s intent in Section 120(a) and, as the Eighth Circuit observed, is an “absurd and unjust outcome” that “would eviscerate CERCLA whenever the government, itself, was partially responsible for a site’s contamination.” Ai]. Research, 459 F.3d at 837. B. Alternatively, An Implied Cause Of Action Exists Under Section 107(a). For the foregoing reasons, petitioners submit that Section 107(a) provides an express cause of action. In the event, however, the Court concludes otherwise, an implied cause of action should, in the alternative, be held to exist under Section 107(a). As the Court recognized in Cooper, such a right is not lightly to be implied. See 543 U.S. at 162, 170-71; but see Musick, Peeler & Garrett v. Employees Ins. of Wausau, 508 U.S. 286 (1993) (implying federal right to contribution under securities law). But, as demonstrated infra, the standard for an implied cause of action is satisfied here. See Key Tronic, 511 U.S. at 816, 818 n.11; Cooper, 543 U.S. at 172-74 (Ginsburg, J., dissenting); Ail. Research, 459 F.3d at 835-36 (upholding, in the alternative, an implied cause of action under Section 107). 26 In determining whether a federal statute impliedly creates a cause of action, the “ultimate question” is “whether Congress intended to create the private remedy . . . that the plaintiff seeks to invoke.” Northwest Airlines, Inc. v. Transp. Workers Union of Am., 451 U.S. at 91 (1981). This issue “is one of statutory construction,” and “[f]actors relevant to this inquiry are the language of the statute itself, its legislative history, the underlying purpose and structure of the statutory scheme, and the likelihood that Congress intended to supersede or to supplement existing state remedies.” /d. Here, all of these factors support an implied cause of action. As previously explained, the language of Section 107(a)(4)(B) and the savings clause in Section 1 13(f)(1) clearly indicate that a PRP, even though not subject to a civil action under Sections 106 or 107 and therefore not entitled to sue under Section 1 13(f)(1) as construed in Cooper, should be entitled to recover an equitable share of cleanup costs from other PRPs. See pages 15-18, supra. Likewise, the legislative history recognizes the existence of such a nght of action. See page 19, supra. Similarly, this right is essential to promote CERCLA’s two fundamental objectives of encouraging the prompt and voluntary cleanup of contaminated sites and imposing the costs of the cleanup on all parties responsible for the contamination. See pages 19-20, supra. Finally, CERCLA unquestionably constitutes (as its title indicates) a comprehensive federal scheme that is independent of state law. See Key Tronic, 511 U.S. at 814. For these reasons, this case is entirely different from Northwest Airlines and other decisions where the Court rejected an implied cause of action. See Cooper, 543 U.S. at 174 n.2 (Ginsburg, J., dissenting) (“[a] determination suitable in one statutory context does not necessarily carry over to a different statutory setting”). Indeed, prior to the passage of SARA in 1986, “numerous cases . . . interpreted . . . § 9607 . . . to impliedly authorize such a cause of action.” Key Tronic, 511 U.S. at 816; see also Cooper, 543 U.S. at 162; Atl. Research, 459 F.3d at 831-32; pages 3-4, supra. Furthermore, because CERCLA 27 plainly embodies a scheme to reallocate cleanup costs among responsible parties, Section 107 was “enacted for the special benefit of a class [PRPs] of which [the plaintiff] is a member.” Northwest Airlines, 451 U.S. at 92. C. InThe Alternative, A Cause Of Action Arises Under Federal Common Law. In the alternative to Section 107(a), a cause of action exists under federal common law. Federal common law arises in “essentially two categories: those in which a federal rule of decision is ‘necessary to protect uniquely federal interests,” . . . and those in which Congress has given the courts the power to develop substantive law.” Texas Indus., Inc. v. Radcliff Materials, 451 U.S. at 640 (1981) (citations omitted). Both circumstances are present here. See Atl. Research, 459 F.3d at 836 n.9 (reserving the issue). First, the cause of action at issue here involves uniquely federal interests. CERCLA constitutes a comprehensive and uniform federal scheme entirely separate from state law. See Key Tronic, 511 US. at 814; Atl. Research, 459 F.3d at 830 (“CERCLA effectively transformed centuries of real property and tort liability law”); 126 Conc. Rec. H11,787 (statement of Rep. Florio) (Dec. 3, 1980) (referring to “the development ofa uniform rule of [federal] law”). The paramount federal interest in a comprehensive and uniform system for cleaning up contaminated sites, including the critical question of contribution that directly affects the achievement of Congress’s objectives (see pages 19-20, supra), supports application of federal common law. See, e.g., Boyle v. United Techs. Corp., 487 U.S. 500, 504, 508 (1988); Jilinois v. City of Milwaukee, 406 U:S. 91, 105 0.6 (1972). In fact, prior to SARA, federal courts upheld a PRP’s right to contribution against other PRPs as a matter of federal common law. See Cooper, 543 U.S. at 161-62; All. Research, 459 F.3d at 831; pages 3-4, 26, supra. Furthermore, this case directly affects the rights and obligations of the United States as a PRP. In particular, the government is a PRP that could be sued, as in fact it was here, 4 28 to bear its fair share of the costs of cleanup. See also pages 3, 24- 25, supra (discussing Section 120(a)’s waiver of the sovereign immunity of the United States). This, too, is a well-recognized circumstance for federal common law. See, e.g., Boyle, 487 U.S. at 504-06; Texas Indus., 451 U.S. at 640-41 n.12. Second, Congress intended that CERCLA issues be governed by federal law and that the courts would develop - federal common law in order to implement CERCLA. See, é.g., Texas Indus., 451 U.S. at 642-46. To begin with, Congress vested exclusive jurisdiction in the federal courts to adjudicate all disputes arising under CERCLA. See 42 U'S.C. § 9613(b). Congress also directed that contribution claims under Section 113()(1) “shall be brought in accordance with .. . the Federal Rules of Civil Procedure and shall be governed by Federal law.” 42 U.S.C. § 9613(f)(1) (emphasis added). Since Section 113(f)(1) does not address many of the legal rules applicable to such claims, Congress Clearly contemplated a significant role for the courts in developing the substantive law of contribution, and the same role is appropriate in the analogous circumstances of this case. CERCLA’ legislative history evidences Congress’s intent that the governing legal rules will be shaped by “traditional and evolving principles of common law.” 126 Conc. Rec. 31,965 (1980) (statement of Rep. Florio); see also 126 Conc. Rec. H11,787 (Dec. 3, 1980) (statement of Rep. Florio) (“[t]o encourage the development of a uniform rule of law, .. . the bill will encourage the further development of federal common law in this area”). For example, in omitting explicit provisions from the early versions of CERCLA that would have mandated both joint and several liability and contribution, Congress specifically left the development of these areas to the courts under “traditional and evolving principles of common law.” See United States v. USX Corp., 68 F.3d 811,824 (3d Cir. 1995). Responding to the congressional invitation to create federal common law, the courts imposed joint and several liability in actions under Section 107. In later enacting Section 113 in SARA, Congress 29 acknowledged that the courts had counterbalanced the harshness of that joint and several liability that had been judicially created by recognizing a “concomitant right of contribution” that sprang from the very same common-law roots. H.R. Rep. No. 99-253(1) at 79, reprinted in 1986 U.S.C.C.A.N. at 2861. And, significantly, the legislative history of SARA makes clear that, even after the first sentence of Section 113(f)(1) provided an express statutory right to contribution, Congress intended for the courts to continue to develop common-law principles to govern CERCLA contribution. See, e.g., S. Rep. No. 99-11, at 45 (1985) (after SARA, “{a]s with joint and several liability, contribution claims will be resolved pursuant to Federal common law”); H.R. Rep. No. 99-253(I), at 80 (1985), reprinted in 1986 U.S.C.C.AN. at 2862 (same); H.R. Rep. No. 99-253(II1), These circumstances readily distinguish cases such as Northwest Airlines and Texas Industries in which the Court declined to apply federal common law. In neither of those cases, unlike in the present case, was there any uniquely federal interest in a common-law right of contribution, or any indication that Congress intended the courts to develop federal common law, or any basis to conclude that such a cause of action was necessary to further the congressional purposes underlying the statute or protect a group intended to be benefited by the provision at issue. By contrast, CERCLA amply justifies a federal common- law cause of action for a PRP that cannot sue under Section 113(f)(1) to recover an equitable share of the cleanup costs from other responsible parties.