ELR Citation: ELR 20649
No(s). 92-506 (E.D. Va. Feb 3, 1993)

The court rules that private parties may recover attorney fees in contribution actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and that CERCLA §120(a) waives U.S. sovereign immunity from claims for attorney fees and litigation costs in such actions. Noting that some courts deny attorney fees and litigation costs to private parties in CERCLA's cost recovery actions under the American rule, which generally bars recovery of attorney fees absent statutory authorization of such awards, the court rules that CERCLA authorizes awards of attorney fees by allowing private parties to recover costs of "response" and defining "response" to include "enforcement activities." Rejecting the defendant's argument that private lawsuits are not "enforcement," the court notes that Congress included enforcement activities as a defined element of a private response. In reaching its holding, the court considers CERCLA's purpose to facilitate the expeditious cleanup of environmental waste and impose cleanup costs on responsible parties. By acting pursuant to a government order, cleaning up the site, and seeking contribution from other responsible parties, the plaintiff serves the same function as the government.

The court also rules that CERCLA §120(a)(1) waives U.S. sovereign immunity from claims for attorney fees and litigation costs in CERCLA contribution actions. Congress plainly intended CERCLA's §120(a)(1) to hold the government liable to the same extent as private parties.

[A previous decision in this litigation is published at 23 ELR 20648.]

Counsel are listed at 23 ELR 20648.