ELR Citation: ELR 20954
No(s). s. 85-2126, -2144 (9th Cir. Sep 15, 1986)

The court rules that a counterclaim seeking a declaratory judgment as to the nonliability of a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 defendant is reviewable in federal court, and reverses the district court's dismissal for lack of jurisdiction. The court first rules that when a declaratory judgment plaintiff asserts a claim that is in the nature of a defense in a threatened or pending action, federal subject matter jurisdiction exists if the declaratory judgment defendant could have brought a coercive action in federal court. The court then holds that federal jurisdiction exists because the declaratory judgment defendant could (and did) bring such a federal action under CERCLA §107 for recovery of response costs. The court then holds that since CERCLA permits a party that has incurred response costs to recover those costs from the responsible party, a potential CERCLA defendant need not himself have incurred any response costs prior to seeking a declaratory judgment as to nonliability, reversing the district court. The court finally holds that the potential CERCLA defendant's claim for declaratory relief is ripe because he had received, and rejected, a claim for reimbursement under CERCLA §112(a).

[The lower court decision appears at 16 ELR 20360. A related case appears at 14 ELR 20248.]

Counsel are listed at 16 ELR 20360.

Before Nelson and Noonan, JJ.