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The Federal Government Says The 6th Circuit and 1st Circuit Now Have Different Superfund Rules But The Supreme Court Shouldn't Do Anything About That!
Friday, August 25, 2023

Anyone who has been practicing environmental law for more than a few years has had a case requiring a dive into the black hole that is CERCLA's statute of limitations which specifies the time within which someone seeking to recover removal or remedial costs (yes, it makes a difference which) needs to file suit to recover some amount of those costs.   

One of my favorite long time EPA lawyers used to say that was one of the things that made Superfund super fun.

To find one's way out of that black hole one first has to determine whether their suit is one for cost recovery under section 107 of the statute or one for contribution under section 113.  For now, let's just say that if one incurred the costs "voluntarily", one likely is suing under section 107 and if one was compelled to pay costs, like by being on the wrong end of a court judgment, one likely is suing under section 113.

The time to sue under section 113 is shorter than the time to sue under section 107; in some cases much shorter.

Once one sorts out whether one is suing under section 107 or section 113, or both, the next question is when did the clock start running on when you needed to sue.

Each of these questions has been a source of much litigation from coast to coast over the past four decades.

That brings us to the Kalamazoo River in Michigan and what the Solicitor General told the Supreme Court this week about a Sixth Circuit ruling that a relatively ancient "'bare-bones' declaratory judgment that had 'awarded no specific amount of damages or costs'" had started the section 113 clock which had run out by the time the would be contribution plaintiff brought suit, barring its contribution claims.

The Supreme Court had asked the Solicitor General to weigh in.

The first thing the Solicitor General said was that the Sixth Circuit was wrong and the Solicitor General's brief does an excellent job of explaining why.

The Government then concedes that there is now a split in the Circuits between the First Circuit, which correctly interpreted the Federal law, and the Sixth Circuit, which did not.

So far that seems like the sort of case the nation's highest court should be taking up.  After all, the notion that Federal law should be applied the same way in all fifty of our United States is pretty fundamental.

But the Solicitor General says the Supreme Court should leave this wrong decision alone.  The reasons why have to do with the Gordian knot that is the litigation over the Kalamazoo River over the decades since its 1990 addition to the Superfund list in which plaintiffs have been, on occasion, defendants and vice versa.  The Government says, hopefully, that maybe the fact that the Superfund rules are now different depending on where you are may not be that big a deal in the long run.  

That doesn't seem right to me.  I'm thinking that if Courts and litigants are still struggling with Superfund's statute of limitations after four decades maybe it needs fixing.  But now who is being hopeful?

This “atypical nature” of the KRSG judgment is one of the reasons the SG still urges the Supreme Court to deny Georgia-Pacific’s cert petition. Pregolar notes that this case in particular serves as “a poor vehicle for clarifying Section 113(g)(3)(A)’s proper application, both because it is unclear whether and to what extent petitioners’ current claims are properly viewed as claims for contribution.” Additionally, the SG acknowledges the circuit split between this case and American Cyanamid, but questions whether the shallow circuit split would warrant review “even in an appropriate case,” pointing to both the atypical nature of the 1998 judgment, noting that in addition to that issue, petitioners “do not specify what judgment, settlement, or administrative order has given them a right to seek contribution claims in the first place.”

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