Lead Opinion
delivered the opinion of the Court.
Section 113(f)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)
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,
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 done so voluntarily and was not itself subject to suit, had a cause of action for cost recovery against other PRPs. Various courts held that § 107(a)(4)(B) and its predecessors authorized such a cause of action. See, e. g., Wickland Oil Terminals v. Asarco, Inc.,
After CERCLA’s passage, litigation also ensued over the separate question whether a private entity that had been sued in a cost recovery action (by the Government or by another PRP) could obtain contribution from other PRPs. As originally enacted in 1980, CERCLA contained no provision expressly providing for a right of action for contribution. A number of District Courts nonetheless held that, although CERCLA did not mention the word “contribution,” such a right arose either impliedly from provisions of the statute, or as a matter of federal common law. See, e. g., United States v. New Castle County,
Congress subsequently amended CERCLA in the Superfund Amendments and Reauthorization Act of 1986 (SARA), 100 Stat. 1613, to provide an express cause of action for contribution, codified as CERCLA § 113(f)(1):
“Any person may seek contribution from any other person who is liable or potentially liable under section*163 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. 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 section 9606 of this title or section 9607 of this title.” Id., at 1647, as codified in 42 U. S. C. § 9613(f)(1).
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.” In short, after SARA, CERCLA provided for a right to cost recovery in certain circumstances, § 107(a), and separate rights to contribution in other circumstances, §§ 113(f)(1), 113(f)(3)(B).
II
This case concerns four contaminated aircraft engine maintenance sites in Texas. Cooper Industries, Inc., owned and operated those sites until 1981, when it sold them to Aviail Services, Inc. Aviall operated the four sites for a number of years. Ultimately, Aviall discovered that both it and Cooper had contaminated the facilities when petroleum
Aviall notified the Texas Natural Resource Conservation Commission (Commission) of the contamination. The Commission informed Aviall that it was violating state environmental laws, directed Aviall to clean up the site, and threatened to pursue an enforcement action if Aviall failed to undertake remediation. Neither the Commission nor the EPA, however, took judicial or administrative measures to compel cleanup.
Aviall cleaned up the properties under the State’s supervision, beginning in 1984. Aviall sold the properties to a third party in 1995 and 1996, but remains contractually responsible for the cleanup. Aviall has incurred approximately $5 million in cleanup costs; the total costs may be even greater. In August 1997, Aviall filed this action against Cooper in the United States District Court for the Northern District of Texas, seeking to recover cleanup costs. The original complaint asserted a claim for cost recovery under CERCLA § 107(a), a separate claim for contribution under CERCLA § 113(f)(1), and state-law claims. Aviall later amended the complaint, combining its two CERCLA claims into a single, joint CERCLA claim. That claim alleged that, pursuant to § 113(f)(1), Aviall was entitled to seek contribution from Cooper, as a PRP under § 107(a), for response costs and other liability Aviall incurred in connection with the Texas facilities.
Both parties moved for summary judgment, and the District Court granted Cooper’s motion. The court held that
A divided panel of the Court of Appeals for the Fifth Circuit affirmed.
On rehearing en banc, the Fifth Circuit reversed by a divided vote, 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.
Ill
A
Section 113(f)(1) does not authorize Aviall’s suit. The first sentence, the enabling clause that establishes the right
Aviall answers that “may” 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. We disagree. First, as just noted, the natural meaning of “may” in the context of the enabling clause is that it authorizes certain contribution actions — ones that satisfy the subsequent specified condition — and no others.
Second, and relatedly, if § 113(f)(1) were read to authorize contribution actions at any time, regardless of the existence of a § 106 or § 107(a) civil action, then Congress need not have included the explicit “during or following” condition. In other words, Aviall’s reading would render part of the statute entirely superfluous, something we are loath to do. See, e. g., Hibbs v. Winn,
The last sentence of § 113(f)(1), the saving clause, does not change our conclusion. That sentence 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 section 9606 of this title or section 9607 of this title.” 42 U. S. C. § 9613(f)(1). The sole function of the sentence 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). In other words, the sentence re
Our conclusion follows not simply from § 113(f)(1) itself, but also from the whole of § 113. As noted above, § 113 provides two express avenues for contribution: § 113(f)(1) (“during or following” specified civil actions) and § 113(f)(3)(B) (after an administrative or judicially approved settlement that resolves liability to the United States or a State). Section 113(g)(3) then provides two corresponding 3-year limitations periods for contribution actions, one beginning at the date of judgment, § 113(g)(3)(A), and one beginning at the date of settlement, § 113(g)(3)(B). Notably absent from § 113(g)(3) is any provision for starting the limitations period if a judgment or settlement never occurs, as is the case with a purely voluntary cleanup. The lack of such a provision 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).
Each side insists that the purpose of CERCLA bolsters its reading of § 113(f)(1). Given the clear meaning of the text, there is no need to resolve this dispute or to consult the purpose of CERCLA at all. As we have said: “[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” On-
B
Aviall and amicus Lockheed Martin contend that, in the alternative to an action for contribution under § 113(f)(1), Aviall may recover costs under § 107(a)(4)(B) even though it is a PRP. The dissent would have us so hold. We decline to address the issue. Neither the District Court, nor the Fifth Circuit panel, nor the Fifth Circuit sitting en banc considered AvialPs § 107 claim. In fact, as noted above, Aviall included separate § 107 and § 113 claims in its original complaint, but then asserted a “combined” § 107/§ 113 claim in its amended complaint. The District Court took this consolidated claim to mean that Aviall was relying on § 107 “not as an independent cause of action,” but only “to the extent necessary to maintain a viable § 113(f)(1) contribution claim.” Civ. Action No. 3:97-CV-1926-D (ND Tex., Jan. 13, 2000), App. to Pet. for Cert. 94a, n. 2. Consequently the court saw no need to address any freestanding § 107 claim. The Fifth Circuit panel likewise concluded that Aviall no longer advanced a stand-alone §107 claim.
“We ordinarily do not decide in the first instance issues not decided below.” Adarand Constructors, Inc. v. Mineta,
Furthermore, the parties cite numerous decisions of the Courts of Appeals as holding that a private party that is itself a PRP may not pursue a § 107(a) action against other PRPs for joint and several liability. See, e. g., Bedford Affiliates v. Sills,
In view of the importance of the § 107 issue and the absence of briefing and decisions by the courts below, we are not prepared — as the dissent would have it — to resolve the § 107 question solely on the basis of dictum in Key Tronic. We held there that certain attorney’s fees were not “ ‘necessary costs of response’ ” within the meaning of § 107(a)(4)(B).
C
In addition to leaving open whether Aviall may seek cost recovery under § 107, Part III-B, supra, we decline to decide whether Aviall has an implied right to contribution under § 107. Portions of the Fifth Circuit’s opinion below might be taken to endorse the latter cause of action,
* * *
We hold only that § 113(f)(1) does not support Aviall’s suit. We therefore reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Notes
Section 113(f)(1) is codified at 42 U. S. C. § 9613(f)(1). We refer throughout, for the most part, to sections of CERCLA rather than the U. S. Code.
The national contingency plan specifies procedures for preparing and responding to contaminations and was promulgated by the Environmental Protection Agency (EPA) pursuant to CERCLA § 105, 42 U. S. C. § 9605 (2000 ed. and Supp. I). The plan is codified at 40 CFR pt. 300 (2004).
In Key Tronic Corp. v. United States,
Aviall asserts that it framed its claim in the manner compelled by Fifth Circuit precedent holding that a §113 claim is a type of §107 claim. Geraghty & Miller, Inc. v. Conoco Inc.,
Neither has Aviall been subject to an administrative order under § 106; thus, we need not decide whether such an order would qualify as a “civil action under section 9606 ... or under section 9607(a)” of CERCLA. 42 U. S. C. § 9613(f)(1).
As noted above, we do not address whether a § 107 cost recovery action by Aviall (if not waived) may seek some form of liability other than joint and several.
Dissenting Opinion
dissenting.
Aviall Services, Inc., purchased from Cooper Industries, Inc., property that was contaminated with hazardous substances. Shortly after the purchase, the Texas Natural Resource Conservation Commission notified Aviall that it would institute enforcement action if Aviall failed to remediate the property. Aviall promptly cleaned up the site and now seeks reimbursement from Cooper. In my view, the Court unnecessarily defers decision on Aviall’s entitlement to recover cleanup costs from Cooper.
The Key Tronic Court divided, however, on the question whether the right to contribution is implicit in § 107(a)’s text, as the majority determined, or whether § 107(a) expressly confers the right, as the dissenters urged. The majority stated: Section 107 “implies — but does not expressly command — that [a PRP] may have a claim for contribution against those treated as joint tortfeasors.”
In the Fifth Circuit’s view, § 107 supplied the right of action for Aviall’s claim, and § 113(f)(1) prescribed the procedural framework.
I see no cause for protracting this litigation by requiring the Fifth Circuit to revisit a determination it has essentially made already: Federal courts, prior to the enactment of § 113(f)(1), had correctly held that PRPs could “recover [under § 107] a proportionate share of their costs in actions for contribution against other PRPs,”
Key Tronic, a PRP, asserted a cost-recovery claim under § 107(a) to recoup approximately $1.2 million in costs that it allegedly incurred cleaning up its site “at its own initiative.” Key Tronic Corp. v. United States,
The cases to which the Court refers, ante, at 171, Texas Industries, Inc. v. Radcliff Materials, Inc.,