Toxic "Plain Meaning" and "Moonshadow": Supreme Court Unanimity and Unexpected Consequences
Document Type
Article
Publication Title
Villanova Environmental Law Journal
Abstract
The United States Supreme Court, especially in recent times, seldom unanimously agrees. Recently, in an unprecedented event in modern legal records, however, the Supreme Court unanimously reversed decisions of all eleven federal circuit courts construing a critical federal statute. This high court decision should have flowed seamlessly through the lower courts and resulted in uniform Superfund enforcement throughout the country, but it has not. Instead, lower federal courts are interpreting the ruling according to their individual factual discretion, resulting in ongoing legal outcomes similar to those the Supreme Court originally overruled.
The Supreme Court’s recent decision, in Atlantic Research clarified that “any…party” voluntarily incurring remediation costs, bar none, is entitled to utilize Superfund’s § 107 cost recovery, but the Court did not define the critical issue of what was a voluntary expenditure. The undefined term makes a big difference for plaintiffs in allocating financial liability for hazardous substances released into the environment. Superfund’s §§ 107 and 113 are not similar cost redistribution mechanisms for plaintiffs; rather, they impose fundamentally different types of liability, often have fatally different statutes of limitations, and the § 113 route can leave no legal remedy at all because of a lack of prior litigation against the party. These statutory provisions are not interchangeable to plaintiffs and can alter the outcome of how billions of dollars of waste liability are allocated.
Initially, all of the circuit courts blocked access to the more plaintiff-friendly § 107 based on their judicial preferences, rather than interpreting the plain meaning of the statute. Even after a unanimous reversal by the Supreme Court in 2007, the Court’s ruling has not always manifested in subsequent jurisprudence. The Third and Fifth Circuit Courts of Appeal, which refused to reopen access to § 107 after the Supreme Court’s 2004 Cooper v. Aviall decision, have, even after the 2007 Atlantic Research decision, used prudential discretion to continue to block access to § 107 for many private parties. Despite three Supreme Court opinions on Superfund liability in a five-year period, lower federal court jurisprudence has not been uniform. The high court has yet to address such Superfund prudential discretion.
This article examines a critical decade of federal court decisions on Superfund liability. It analyzes the Supreme Court’s decision, subsequent recent decisions of the lower federal courts, and mechanisms the lower courts use to side-step key elements of the Supreme Court’s decision. This article will detail how different interpretations of adjectives taint and alter joint liability for billions of dollars of liability. Finally, this article will draw conclusions about the inconsistent application of prudential judicial discretion.
First Page
1
Last Page
57
Publication Date
2013
Recommended Citation
Steven Ferrey, Toxic "Plain Meaning" and "Moonshadow": Supreme Court Unanimity and Unexpected Consequences, 24 Vill. Envtl. L.J. 1 (2013).
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