Section 107(a) Actions On April 23, 2007, United States v. Atlantic Research, Case No. 06-562, was argued before the United States Supreme Court. This case addresses the issue left open by the Supreme Court in 2004 in Cooper v. Aviall: whether a potentially responsible party that conducts a voluntary clean up may seek to recover its cleanup costs from another potentially responsible party under section 107 of CERCLA. Gardere Partners, Cindy Bishop and Rick Faulk, who represent Aviall, attended the oral argument.

During oral argument, the justices focused on the implications of limiting 107 actions and the impact of a 107 action on contribution protection. Clearly, the justices realized that limiting 107 actions would greatly reduce the ability to sue the federal government (which was called a “big polluter” by several justices) and would eliminate the incentive for the federal government to settle pollution cases.

The justices, however, expressed concern about whether a 107 action would be used to re-open settlements entered under CERCLA section 113 and subject to contribution protection. But by the end of oral argument, the justices seemed comfortable that contribution protection would remain intact, whether through classifying a 107 action as a contribution action or through counterclaims brought within a 107 action, which would convert the 107 action to one for contribution.

Finally, the justices acknowledged that limiting 107 actions to “innocent” parties (as advocated by the United States) would force parties to first litigate whether the plaintiff met one of the innocent defenses under CERCLA. As a result, the CERCLA defenses would become affirmative defenses and would put the cart before the horse.