Alston & Bird recently helped its clients U.S. Pipe & Foundry Co. and Walter Energy secure an important appellate victory in Solutia, Inc., et al. v. McWane, Inc., et al., -- F.3d --, 2012 WL 695007 (11th Cir. 2012), which involved environmental liability under the federal Superfund or CERCLA.
The appeal presented an issue of first impression for the Eleventh Circuit—whether a potentially responsible party (PRP) that has a Section 113 claim for contribution for cleanup costs may also bring a cost recovery claim for joint and several liability under Section 107. The Supreme Court left open this very question in United States v. Atlantic Research Corp., 551 U.S. 128 (2007), creating significant uncertainty among the lower courts.
In reaching its decision, the Eleventh Circuit relied upon the Supreme Court’s admonishment in Atlantic Research to read CERCLA “as a whole,” and the court found that to permit an election of remedies between Section 107 and 113 would undermine the structure of CERCLA altogether. This holding had added import here because the defendants had previously entered into a settlement with U.S. EPA, which provided contribution protection against third-party claims. That protection would have been rendered meaningless if the plaintiffs had been allowed to simply recast their contribution claim as a cost recovery claim. It also would have created a strong disincentive for parties to enter into voluntary settlements with U.S. EPA.
The members of Alston & Bird’s environmental team involved in this appeal were Doug Arnold, Beverlee Silva, Meaghan Boyd, Sarah Babcock and Jody Rhodes.