Cooper Industries, Inc. v. Aviall Services, Inc., No. 02-1192.

CourtUnited States Supreme Court
Writing for the CourtThomas
Citation543 U.S. 157
PartiesCOOPER INDUSTRIES, INC. v. AVIALL SERVICES, INC.
Docket NumberNo. 02-1192.
Decision Date13 December 2004
543 U.S. 157
COOPER INDUSTRIES, INC.
v.
AVIALL SERVICES, INC.
No. 02-1192.
Supreme Court of United States.
Argued October 6, 2004.
Decided December 13, 2004.

The enabling clause of § 113(f)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as added by the Superfund Amendments and Reauthorization Act of 1986 (SARA), provides that any person "may" seek contribution from any other person liable or potentially liable under CERCLA § 107(a) "during or following any civil action" under CERCLA § 106 (which authorizes the Federal Government to compel responsible parties to clean up contaminated areas, see Key Tronic Corp. v. United States, 511 U. S. 809, 814), or CERCLA § 107(a) (which empowers the Government to recover its response costs from potentially responsible persons (PRPs)). Section 113(f)(1)'s saving clause provides: "Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under" § 106 or § 107. SARA also created a separate express right of contribution, § 113(f)(3)(B), for "[a] person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement."

Cooper Industries, Inc., owned four Texas properties until 1981, when it sold them to Aviall Services, Inc. After operating those sites for several years, Aviall discovered that both it and Cooper had contaminated them when hazardous substances leaked into the ground and ground water. Aviall notified the State of the contamination, but neither the State nor the Federal Government took judicial or administrative measures to compel cleanup. Aviall cleaned up the properties under the State's supervision and sold them to a third party, but remains contractually responsible for $5 million or more in cleanup costs. Aviall filed this action against Cooper to recover such costs. The original complaint asserted, inter alia, a claim for cost recovery under § 107(a) and a separate claim for contribution under § 113(f)(1). Aviall later amended the complaint to, among other things, combine its two CERCLA claims into a single, joint claim that, pursuant to § 113(f)(1), sought contribution from Cooper as a PRP under § 107(a). Granting Cooper summary judgment, the District Court held that Aviall had abandoned its freestanding § 107 claim, and that contribution under

[543 U.S. 158]

§ 113(f)(1) was unavailable because Aviall had not been sued under § 106 or § 107. The Fifth Circuit ultimately reversed, holding that § 113(f)(1) allows a PRP to obtain contribution from other PRPs regardless of whether the PRP has been sued under § 106 or § 107. The court reasoned in part that "may" in § 113(f)(1)'s enabling clause did not mean "may only."

Held: A private party who has not been sued under CERCLA § 106 or § 107(a) may not obtain contribution under § 113(f)(1) from other liable parties. Pp. 165-171.

(a) Section 113(f)(1) does not authorize Aviall's suit. This Court disagrees with Aviall's argument that the word "may" in § 113(f)(1)'s enabling clause should be read permissively, such that "during or following" a civil action is one, but not the exclusive, instance in which a person may seek contribution. First, the natural meaning of "may" in this context is that it authorizes certain contribution actions that satisfy the subsequent specified condition—i. e., those that occur "during or following" a specified civil action—and no others. Second, reading § 113(f)(1) to authorize contribution actions at any time, regardless of the existence of a § 106 or § 107(a) civil action, would render entirely superfluous the section's explicit "during or following" condition, as well as § 113(f)(3)(B), which permits contribution actions after settlement. This Court is loath to allow such a reading. See, e.g., Hibbs v. Winn, 542 U. S. 88, 101. Congress would not have bothered to specify conditions under which a person may bring a contribution claim, and at the same time allowed contribution actions absent those conditions. Section 113(f)(1)'s saving clause does not change the Court's conclusion. That clause's sole function 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), thereby rebutting any presumption that the express right of contribution provided by the enabling clause is the exclusive contribution cause of action available to a PRP. The saving clause, however, does not itself establish a cause of action, nor expand § 113(f)(1) to authorize contribution actions not brought "during or following" a § 106 or § 107(a) civil action, nor specify what causes of action for contribution, if any, exist outside § 113(f)(1). Reading the clause to authorize § 113(f)(1) contribution actions not just "during or following" a civil action, but also before such an action, would again violate the settled rule that the Court must, if possible, construe a statute to give every word some operative effect. In light of provisions specifying two 3-year limitations periods for contribution actions beginning at the date of judgment, § 113(g)(3)(A), and at the date of settlement, § 113(g)(3)(B), the absence of any such provision for cases in which a

[543 U.S. 159]

judgment or settlement never occurs also supports the conclusion that, to assert a contribution claim under § 113(f), a party must satisfy the conditions of either § 113(f)(1) or § 113(f)(3)(B). Given the clear meaning of CERCLA's text, there is no need to resolve the parties' dispute about CERCLA's purpose or to consult that purpose at all. See Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79. Because Aviall has never been subject to a civil action under § 106 or § 107(a), it has no § 113(f)(1) claim. Pp. 165-168.

(b) The Court declines to address in the first instance Aviall's claim that it may recover costs under § 107(a)(4)(B) even though it is a PRP. In view of the importance of the § 107 issue, the question whether Aviall waived a freestanding § 107 claim, and the absence of briefing and decisions by the courts below, this Court is not prepared to resolve the § 107 question solely on the basis of dictum in Key Tronic. Pp. 168-170.

(c) In addition, the Court declines to decide whether Aviall has an implied right to contribution under § 107. To the extent that Aviall chooses to frame its § 107 claim on remand as an implied right of contribution (as opposed to a right of cost recovery), the Court notes that it has visited the subject before, see, e.g., Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 638-647, and that, in enacting § 113(f)(1), Congress explicitly recognized a particular set (claims "during or following" the specified civil actions) of the contribution rights previously implied by courts from provisions of CERCLA and the common law, cf. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 19. Pp. 170-171.

312 F. 3d 677, reversed and remanded.

THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 171.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

William Bradford Reynolds argued the cause for petitioner. With him on the briefs were Lisa K. Hsiao, Dale E. Stephenson, and Allen A. Kacenjar.

Jeffrey P. Minear argued the cause for the United States as amicus curiae urging reversal. With him on the brief were former Solicitor General Olson, Assistant Attorney General Sansonetti, Deputy Solicitor General Hungar, Deputy Assistant Attorney General Clark, and Paul S. Weiland.

[543 U.S. 160]

Richard O. Faulk argued the cause for respondent. With him on the brief were Cynthia J. Bishop, Jeffrey M. Gaba, Walter Dellinger, and Pamela Harris.*

JUSTICE THOMAS delivered the opinion of the Court.


Section 113(f)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)1 allows persons who have undertaken efforts to clean up properties contaminated by hazardous substances to seek contribution from other parties liable under CERCLA. Section 113(f)(1) specifies that a party may obtain contribution "during or following any civil action" under CERCLA § 106 or § 107(a). The issue we must decide is whether a

543 U.S. 161

private party who has not been sued under § 106 or § 107(a) may nevertheless obtain contribution under § 113(f)(1) from other liable parties. We hold that it may not.

I

Under CERCLA, 94 Stat. 2767, the Federal Government may clean up a contaminated area itself, see § 104, or it may compel responsible parties to perform the cleanup, see § 106(a). See Key Tronic Corp. v. United States, 511 U. S. 809, 814 (1994). In either case, the Government may recover its response costs under § 107, 42 U. S. C. § 9607 (2000 ed. and Supp. I), the "cost recovery" section of CERCLA. Section 107(a) lists four classes of potentially responsible persons (PRPs) and provides that they "shall be liable" for, among other things, "all costs of removal or remedial action incurred by the United States Government . . . not inconsistent with the national contingency plan." § 107(a)(4)(A).2 Section 107(a) further provides that PRPs shall be liable for "any other necessary costs of response incurred by any other person consistent with the national contingency plan." § 107(a)(4)(B).

After CERCLA's enactment in 1980, litigation arose over whether § 107, in addition to allowing the Government and certain private parties to recover costs from PRPs, also allowed a PRP that had incurred response costs to recover costs from other PRPs. More specifically, the question was whether a private party that had incurred response costs, but that had...

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362 practice notes
  • Trinity Indus., Inc. v. Greenlease Holding Co., Civil Action No. 2:08–1498.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • August 5, 2014
    ...following” a civil action commenced under § 9606 or § 9607. 42 U.S.C. § 9613(f)(1). In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 165–68, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), the Supreme Court construed that language to mean that the commencement of an underlying civi......
  • N.Y. State Electric & Gas Corp. v. Firstenergy Corp., Civil Action No. 3:03-CV-0438 (DEP)
    • United States
    • U.S. District Court — Northern District of New York
    • July 11, 2011
    ...held that a party may assert a contribution claim under § 113(f)(1) only if that party itself has been sued civilly for cost recovery. 543 U.S. 157, 166-68, 125 S. Ct. 577, 583-84 (2004). Because NYSEG was not subject to such a suit prior to commencement of this action, it is foreclosed fro......
  • People v. Mckinnon, No. S077166.
    • United States
    • United States State Supreme Court (California)
    • October 12, 2011
    ...high court are not authority for issues neither considered nor decided therein. ( Cooper Industries, Inc. v. Aviall Services, Inc. (2004) 543 U.S. 157, 170, 125 S.Ct. 577, 160 L.Ed.2d 548 [“ ‘Questions which merely lurk in the record, neither brought to the attention of the court nor ruled ......
  • Bernstein v. Bankert, No. 11-1501
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 31, 2013
    ...under section 9606 of this title or under section 9607(a) of this title.(emphasis added). In Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004), the Supreme Court held that the italicized phrase has a limiting effect. "The natural meaning of this sentence is that the contributi......
  • Request a trial to view additional results
350 cases
  • Trinity Indus., Inc. v. Greenlease Holding Co., Civil Action No. 2:08–1498.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • August 5, 2014
    ...following” a civil action commenced under § 9606 or § 9607. 42 U.S.C. § 9613(f)(1). In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 165–68, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), the Supreme Court construed that language to mean that the commencement of an underlying civi......
  • N.Y. State Electric & Gas Corp. v. Firstenergy Corp., Civil Action No. 3:03-CV-0438 (DEP)
    • United States
    • U.S. District Court — Northern District of New York
    • July 11, 2011
    ...held that a party may assert a contribution claim under § 113(f)(1) only if that party itself has been sued civilly for cost recovery. 543 U.S. 157, 166-68, 125 S. Ct. 577, 583-84 (2004). Because NYSEG was not subject to such a suit prior to commencement of this action, it is foreclosed fro......
  • People v. Mckinnon, No. S077166.
    • United States
    • United States State Supreme Court (California)
    • October 12, 2011
    ...high court are not authority for issues neither considered nor decided therein. ( Cooper Industries, Inc. v. Aviall Services, Inc. (2004) 543 U.S. 157, 170, 125 S.Ct. 577, 160 L.Ed.2d 548 [“ ‘Questions which merely lurk in the record, neither brought to the attention of the court nor ruled ......
  • Bernstein v. Bankert, No. 11-1501
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 31, 2013
    ...under section 9606 of this title or under section 9607(a) of this title.(emphasis added). In Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004), the Supreme Court held that the italicized phrase has a limiting effect. "The natural meaning of this sentence is that the contributi......
  • Request a trial to view additional results
8 books & journal articles
  • Defenses and Exceptions to Liability
    • United States
    • Superfund Deskbook -
    • August 11, 2014
    ...contribution action.” (internal quotation marks omitted)), abrogated on other grounds by Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004); Town of Munster, Ind. v. Sherwin-Williams Co., 27 F.3d 1268, 1274 (7th Cir. 1994) (rejecting equitable defenses to liability but noting t......
  • Avoiding the Contribution 'Catch-22': CERCLA Administrative Orders for Cleanup Are Civil Actions
    • United States
    • Environmental Law Reporter Nbr. 46-9, September 2016
    • September 1, 2016
    ...(2009); United States v. Atlantic Research Corp. , 551 U.S. 128, 37 ELR 20139 (2007); and Cooper Indus., Inc. v. Aviall Servs., Inc. , 543 U.S. 157, 34 ELR 20154 (2004); see Gaba, supra note 38, at 132-42 (2015) (delineating the implications of Aviall and Atlantic Research and outlining the......
  • Unresolved CERCLA Issues After Atlantic Research and Burlington Northern
    • United States
    • Environmental Law Reporter Nbr. 40-12, December 2010
    • December 1, 2010
    ...1. 42 U.S.C. §§9601-9675, ELR Stat. CERCLA §§101-405. 2. 551 U.S. 128, 37 ELR 20139 (2007). 3. 129 S. Ct. 1870, 39 ELR 20098 (2009). 4. 543 U.S. 157, 34 ELR 20154 (2004). claims? Fourth, what are the operative standards for establishing divisibility at a CERCLA site post- Burlington Norther......
  • Making the Case for Causation in Toxic Tort Cases: Superfund Rules Don't Apply
    • United States
    • Environmental Law Reporter Nbr. 40-7, July 2010
    • July 1, 2010
    ...N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 364 (5th Cir. 2005). 5. See, e.g., Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161, 34 ELR 20154 (2004). 6. 42 U.S.C. §9601(23), (24); see, e.g., Schaefer v. Town of Victor, 457 F.3d 188, 195, 36 ELR 20139 (2d Cir. 2006).......
  • Request a trial to view additional results

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