Supreme Court Expands Superfund Cost Recovery Scheme


Partially resolving a question left unanswered by a decision three years ago, the United States Supreme Court recently ruled that parties who voluntarily remediate contaminated property may seek full recovery of their costs under section 107(a) of the federal Superfund law (CERCLA)-even if they are themselves partially responsible for causing the contamination. United States v. Atlantic Research Corp., Case No. 06-562 (June 11, 2007). This new ruling largely overturns existing law which limits responsible parties to CERCLA contribution claims, and bars such claimants from seeking joint and several liability.

The Atlantic Research decision casts substantial doubt over the value of "contribution protection" granted in the past by the government to responsible parties who settle their liability with a state or the federal government in the form of a cash-out settlement. Writing for a unanimous court, Justice Clarence Thomas declared that "contribution protection" does not protect such "cash-out" settling parties against CERCLA 107(a) claims. The Supreme Court's decision greatly expands the remedies available to a party who voluntary cleans contaminated property while simultaneously creating a significant disincentive to settling one's potential liability with the government without concurrently settling with all other responsible parties.


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   Kenneth A. Ehrlich
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   Michael J. Stiles
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   Malcolm C. Weiss
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