No Contribution Claims for Voluntary Cleanup of Superfund Sites: The Troubling Supreme Court Decision in Cooper Industries v. Aviall Services

I. Introduction In Cooper Industries v. Aviall Services ("Cooper Industries") 1 , the United States Supreme Court held that section 113(f)(1) 2 ("section 113(f)(1)") of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA") 3 , does not allow a potentially responsible party ("PRP") to seek contribution from another PRP for the costs of voluntarily cleaning up a hazardous waste site. 4 Instead, the Court held that before a PRP can bring a cause of action under section 113(f)(1), the PRP himself must have been subject to a civil action under section 106 or section 107(a) of CERCLA 5 ("section 106" and "section 107(a)"). Under section 106, the federal government may order the cleanup of a hazardous site, and under section 107(a), a party who has incurred cleanup costs, whether the government or a private entity, may sue a PRP for cost recovery. 6 Thus, according to Cooper Industries, a PRP who voluntarily undertook cleanup efforts (i.e., without being subject to a federal cleanup order and without having been sued for cleanup costs) may not seek contribution from another PRP under section 113(f)(1). Cooper Industries reversed an en banc holding of the Fifth Circuit Court of Appeals, 7 and it settled an issue over which federal courts had differed for many years. 8 This comment argues that the Court's textualist 9 analysis 10 of section 113(f)(1) was overly narrow and that the Court erred ...