ELR Citation: ELR 20955
No(s). 93-376 (U.S. Jun 6, 1994)

The Court rules that private litigants' attorney fees incurred in bringing a cost recovery action generally are not recoverable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107. Under the American rule, attorney fees usually are not recoverable absent explicit congressional authorization, and CERCLA does not expressly mention the recovery of such fees. The Court holds that attorney fees the petitioner incurred in bringing a contribution claim against the U.S. Air Force are not recoverable "necessary costs of response" under §107(a)(4)(B), because "enforcement activities" under CERCLA §101(25) do not encompass a private party's action to recover cleanup costs from other potentially responsible parties (PRPs). The Court next holds, however, that the component of the attorney fees claim that covers activities performed in identifying other PRPs does constitute a "necessary cost of response" recoverable under §107(a)(4)(B). Fees for these kinds of activities are clearly distinguishable from fees incurred in pursuing litigation. Finally, the Court holds that fees for legal services performed in connection with the negotiations between the petitioner and the U.S. Environmental Protection Agency (EPA) that culminated in the consent decree do not constitute "necessary costs of response." Although such services may have aided EPA and affected the cleanup's scope and form, they must be viewed as primarily protecting the private litigant's interests as a defendant in proceedings establishing the extent of its liability.

Dissenting Justices Scalia, Thomas, and Blackmun would hold that the plain language of §§107(a)(4)(A)-(B) and 101(25) entitles a private litigant to the costs associated with bringing a §107(a)(4)(B) cost recovery action. They would interpret "enforcement activities" to cover the attorney fees incurred by both the government and private plaintiffs successfully seeking cost recovery under §107.

Counsel for Petitioner
James R. Moore
Perkins Cole
1201 Third Ave., 40th Fl., Seattle WA 98101
(206) 583-8888

Counsel for Respondent
M. Alice Thurston
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000